Schertz v. John Hancock Mut. Life Life Ins. Co.

• Decision Date: 08 May 1923
• Docket Number: No. 17589.,17589.
• Citation: 251 S.W. 93
• Parties: SCHERTZ v. JOHN HANCOCK LIFE INS. CO.
• Court: Missouri Court of Appeals

251 S.W. 93

SCHERTZ v. JOHN HANCOCK LIFE INS. CO.

No. 17589.

St. Louis Court of Appeals. Missouri.

May 8, 1923.

Rehearing Denied May 25, 1923.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

"Not to be officially published."

Action by Florence E. Schertz against the john Hancock Mutual Life Insurance Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

S. C. Rogers, of St. Louis, for appellant. Leahy, Saunders & Walther and J. L. London, all of St. Louis, for respondent.

DAUES, J.

This is an action on a life insurance policy for $2,500. Plaintiff is the daughter of Laura Mueller, who died March 4, 1919, and upon whose life this policy was issued December 28, 1918, in favor of plaintiff as beneficiary. The petition is in usual form.

The answer, after formal admissions of the execution and delivery of the policy, death of the insured, demand by plaintiff for payment and refusal to pay, pleads as an affirmative defense misrepresentation and fraud by the insured and conspiracy on the part of the plaintiff; that the insured was not in good health, but was suffering with cancer, at the time the policy was delivered; that the insured did not truthfully answer questions in the application and medical examination; and, further, that the defendant relied upon such statements, and that, had the insurance company known the true facts, it would not have issued the policy. The answer tendered a return of the premiums paid and asked release from liability.

The reply, after a general denial, alleges that the defendant made its own examination of the physical condition of the insured at the time the policy was issued and knew the insured's condition, that the defendant's agents asked questions and reduced the insured's answers to writing, and that the insurance company procured the insurance at its own volition and request; pleads further that, if insured was not in good health at that time, the defendant's agents knew such facts and waived same.

The cause was tried in the circuit court before the court and jury, and resulted in a verdict and judgment for the defendant, from which plaintiff has appealed.

Plaintiff made a prima fade case. The defendant introduced evidence tending to show that the insured, over a period of many months prior to the time the insurance was taken out, had consulted many different physicians and specialists in an effort to obtain relief from an abdominal ailment. There is evidence that diagnosis after diagnosis was made of the insured, and that at least in one instance the diagnosis was to the effect that the Insured was suffering from a cancer in the abdomen. She received X-ray treatments for cancer prior to her application for insurance, and there is abundant evidence from which the jury could conclude not only that the insured had a cancer for 18 months prior to her death, but that she herself had advice from physicians prior to this application for insurance that she suffered from that malady. It was shown that in January, 1919, she submitted to an operation at a hospital at which time a cancerous tumor the size of the largest watermelon was extracted. She died a few days after the operation.

Plaintiff's proof of death, inter alia, contained the following:

"Q. What disease caused death? A. Cerebral apoplexy.

"Q. Was it complicated by any other disease? A. Castro-ovarian cancer.

"Q. If so, by what, and for what period of time? A. 18 months."

Defendant introduced the testimony of many physicians and others, substantially sustaining the defendant's affirmative defense of alleged misrepresentation and fraud by the insured in obtaining the policy, and that the insured was not in good health, but was suffering with a cancer, at the time the policy was delivered to her.

Plaintiff complains, first, of the court's action in giving certain instructions, and, again, on the ruling of the court on the admission of certain evidence.

Instruction No. 7, given on behalf of defendant, Is as follows:

"The court instructs the jury that the proofs of death furnished by the plaintiff to the defendant are an admission on the part of the plaintiff that the deceased, Laura Mueller, on and prior to the date of the issuance of the policy In question by the defendant, was suffering from ovarian cancer, and, unless the jury finds that plaintiff has produced some substantial evidence to explain away the admission aforesaid, your verdict must be for the defendant."

Counsel for plaintiff says that this instruction fails to take into consideration the benefit plaintiff might derive from any evidence introduced by the defense which contradicts such admissions in the proof of death; that is to say, if there is evidence brought into the case from either side, from the...